Dr James Melia explores some common misunderstandings and omissions that can result in allegations of sexual assault from a patient
I regularly encounter requests for assistance from members who are shocked to learn that they have been accused of performing an inappropriate intimate examination. Even the most experienced private practitioners can find themselves at the centre of an allegation of this nature following a consultation.
Given the nature of these examinations, a complaint will essentially constitute an allegation that a sexual assault has taken place. Unfortunately for this reason, many cases are subsequently escalated to the police, who may notify local safeguarding teams, and it may become a disciplinary investigation.
In this article, we explain why these complaints can arise, and the steps a clinician can take to minimise risk.
Consent
In many cases of this nature, a concern is raised because the patient feels the examination, or parts of it, were unnecessary or not linked to their symptoms and they therefore did not give consent. The Sexual Offences Act 2003 defines sexual assault in Section 3 (1) as when ‘A person (A) intentionally touches another person (B), not having a reasonable belief that B consents. The touching must be sexual in nature, and B does not consent to that touching’.
Importantly the act makes specific provision to define ‘reasonable belief’ as having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
Clear consent is therefore key, and for intimate examinations consent should never be implied. You should take time to communicate sensitively what is involved and why the examination proposed will aid the diagnosis in this specific patient. In many cases, this may be obvious, but in some scenarios the reason for the examination may not be clear to the patient – for example when examining around the breast to palpate the apex beat, or if the patient may be expecting an external inspection (e.g. of a lump) rather than an internal examination.
It is important to ask the patient if they have any questions, and advise them that they should let you know if they are uncomfortable and the examination can be stopped at any time. You should also be alert to any non-verbal cues, which may indicate that the patient would prefer to not continue with the examination.
In addition to consenting the patient prior to the examination, it can often be helpful to describe or explain in brief terms what you are doing during the examination. This is especially important if the patient cannot see the examination.
Chaperones
The GMC guidance is clear that a chaperone should be offered when you carry out an intimate examination regardless of whether the doctor and patient share the same gender. The chaperone should be trained, i.e. familiar with the procedure and aware of how to raise any concerns. For this reason, a patient’s friend or family member should not act as a chaperone, but can still be present to provide support if needed.
If the patient declines a chaperone, but you feel it is important that one is present, you should take time to explain your reasons clearly to the patient in a way they can understand. In most cases if a clinician has explained that they would feel uncomfortable or it was inappropriate to continue without a chaperone most patients will agree to have one present. If the patient continues to decline despite this, or a chaperone is not available, the clinician should consider whether it is clinically safe to delay the examination until either a chaperone or another clinician who would be willing to examine without a chaperone is available. The GMC guidance supports these decisions ‘as long as the delay would not adversely affect the patient’s health’.
Record Keeping
The importance of having clear records in these cases cannot be underestimated. You should record the outcome of any discussions around using a chaperone, including if an offer was made and declined. If a chaperone is used the record should include their name and role.
Case Study
Dr G, a female GP, consulted with a 33-year-old patient complaining of a vaginal lump and a history of previous cervical polyp. Dr G explained that an internal examination was required and offered the patient a chaperone, but they declined. Whilst collecting equipment, another staff member offered themselves as a chaperone, but Dr G explained that the patient had declined. Dr G documented ‘chaperone not required’ in the record and proceeded to examine the patient. Near the end of the examination, having found no abnormality, Dr G asked the patient to point out the lesion. The patient did so but could not feel the internal lump either, so the consultation ended with some reassurance and safety netting advice.
The next day, the patient called the practice to complain. She stated that she felt violated by the examination, and in particular, felt that being asked to ‘self-examine’ in front of the doctor, had a sexual undertone. She also disputed that she had declined a chaperone. She had already escalated the complaint to NHS England and alerted the police, who in turn referred the matter to the local safeguarding team.
Support for the GP was provided through a thorough and clear complaint response explaining that the request to point out the lesion was simply to ensure nothing had been missed as no abnormality had been found on examination. The response also acknowledged that the reason for this should have been explained either before or during the examination. NHS England and the safeguarding team closed the investigation after Dr G had provided some reflections on her communication and record keeping, particularly that the ‘chaperone not required’ note left in the patient’s record could not verify Dr G’s account of the consent process. She also reflected that in future cases she could consider asking for a chaperone to be present despite the patient initially declining, if she felt this was appropriate and clinically safe.
Dr James Melia is Medicolegal Consultant at Medical Protection.
